All posts by Harvey Silverglate

Harvey Silverglate, a Boston criminal defense and civil liberties lawyer and writer, is the co-founder of The Foundation for Individual Rights in Education (www.thefire.org). He co-authored The Shadow University: The Betrayal of Liberty on America's Campuses.

Add Babson to the List Of Campus Hoaxes

The shoot-first-and-ask-questions-later mentality that has gripped our college campuses, currently basking — or wallowing — in a so-called diversity and inclusion phase, has visited Babson College, where members of the administration and faculty worked themselves into a lather over an incident of racial harassment that, it turns out, the most elementary investigation would have demonstrated never occurred.

This puts Babson, President Kerry Healey, and a number of administrators and faculty members in the uncomfortable position of having failed to adhere to an academic obligation — first determine the facts, then draw conclusions, and only then open your mouth.

The embarrassing imbroglio stems from an ill-fated and impulsive truck ride by two Babson students, Parker Rand-Ricciardi and Edward Tomasso, to Wellesley College on Nov. 9 to gloat over Donald Trump’s victory. Gloating is, of course, fully protected by the most elementary precepts of academic freedom, to which virtually all liberal arts colleges — including Babson and Wellesley — are committed.

Quickly, the word spread via social media that the pair had engaged in racist and homophobic slurs, including a targeted visit to Wellesley’s Harambee House, home to the college’s African-American cultural center. The reports of racial slurs were complemented by one report of spitting by the Babson duo.

But investigators were unable to substantiate any of these reports of hate speech. That they took root, then spread like wildfire, to the point of provoking condemnations from many of the supposed adults running Babson, tells us how far our colleges have fallen in the contest by administrators and professors to be seen as holier-than-thou when it comes to hot-button issues of race, gender, sexual orientation and other such categories.

Healey was joined by Dean of Students Lawrence Ward, and some 200 members of Babson’s faculty — none of whom apparently had bothered to look for evidence before condemning Rand-Ricciardi and Tomasso and effectively labeling them racists and homophobes. It was a classic example of the justice meted out by the infamous character Queen of Hearts in “Alice in Wonderland,” who pronounced sentences — “off with their heads” — before the inconvenience of a trial.

The unseemly faculty and administration rage was tempered only when Babson and Wellesley campus police reported they could find no evidence to support any of the allegations of racism. Babson’s campus ban on the two students was immediately lifted. Yelling “Trump 2016” and “Make America Great Again” out of the windows of a vehicle is not a crime in the USA, nor a recognized offense — at least not yet — on a liberal arts campus.

Perhaps the biggest surprise was the politically correct, premature and unsubstantiated condemnations that came from the mouth of Babson’s president, who, because of her business and political rather than academic background, might have been expected to exercise more skepticism and better judgment than we have come to expect from the typical campus administrator or professor.

Before accepting the Babson presidency, Healey had a vibrant career in the real world. Her departure from positions of prominence and responsibility into the academic mosh pit is a misfortune sadly demonstrated by what she’s chosen to do there — wrongly impugn the reputations and jeopardize the careers of two young men she happens to disagree with.

Reprinted with permission from the Boston Herald

A Champion of Free Speech Takes on the Muzzled Campus

Harvey Silverglate delivered these remarks upon receiving the Manhattan Institute’s Alexander Hamilton award Monday, May 9th at a dinner in New York City. Silverglate is a Cambridge attorney, a veteran defender of civil rights and civil liberties, and co-founder, along with University of Pennsylvania professor Alan Charles Kors, of the Foundation for Individual Rights in Education (FIRE).


I have dedicated much of my career to two contests that are consuming our nation, the ramifications of which will impact generations to come as well as the health of the republic itself.

I am referring to, first, the capacity of the criminal law, especially federal law, to turn all of us into criminals, at the government’s whim, for engaging in what to us appear to be the most benign personal and professional actions or inactions.

And, second, the effort, well underway, to destroy the liberal arts university by replacing the quest for human knowledge with the indoctrination of students into truth as it is postulated by self-righteous fanatics who think they have a monopoly on human wisdom, when in fact all they really have monopolized are the levers of academic and administrative power.Harvey Silverglate

And, with respect to these two areas – due process and fairness in the criminal law, and free speech and thought and procedural fairness on college campuses – I have long taken comfort in the reliability of allies such as the Manhattan Institute. This is the reason that, despite my reputation for accepting rather few invitations, I gratefully accepted the Manhattan Institute’s invitation to venture to New York (where, by the way, I was born, so this is not foreign territory to me) to accept, along with my co-recipient the redoubtable Bruce Kovner, the Institute’s Alexander Hamilton Award.

Thank you, Manhattan Institute, and the Institute’s leadership – President Larry Mone in particular, and the entire Board – for this honor, but, even more important, for the Institute’s ceaseless support for civilization and sanity in my two areas of interest, the criminal law and our institutions of higher education.

Interestingly, I noticed that dangerous trends in each of these two areas accelerated around the same time –the mid-1980s. Might the explanation, I asked myself, be that suddenly the universities were accepting a more diverse student body? Rather than celebrate this liberalization of American society and academic culture, I wondered, perhaps the colleges, fearing that students of different racial, religious, and social backgrounds would clash with one another, expanded the student-life bureaucracies to, in their view, keep the peace.

Regardless of the justification, definitions of “harassment” were adopted that were so vague and broad so as to escalate the numbers of disciplinary proceedings, many of which were deemed confidential so that the outside world had no idea what was happening. Speech codes popped up that sought to prevent students from insulting or offending one another, but in practice the codes strangled the academic enterprise. Kangaroo courts were established to adjudicate the many violations of the new rules. Remember that we’re talking about liberal arts colleges, not prisons, not re-education camps!

At about the same time, I noted a proliferation of prosecutions in the federal courts that were ensnaring defendants who, it seemed to me, had conducted themselves, if not superbly, then at least within legal limits. This ensnaring was enabled by the greatly expanded use of inherently vague federal statutes, such as “fraud.” The concept of “fraud” suddenly meant whatever a United States Attorney wanted it to mean, with the target often being selected for the personal aggrandizement of the prosecutor’s reputation and future career prospects rather than for the protection of the public.

The bottom line was that I saw these major institutions – the college campuses and the federal courts – take a turn toward precepts and practices that furnished a nutrient-laden petri dish for an experiment in an authoritarianism that was very different from the America I was familiar and comfortable with.

The Foundation for Individual Rights in Education’s co-founders, University of Pennsylvania Professor Alan Charles Kors and I, established FIRE in 1999, a year after Professor Kors and I published our book, The Shadow University: The Betrayal of Liberty on America’s Campuses. That book followed Professor Kors’ representation, with some legal advice from me, of an undergraduate who was being persecuted in a Penn campus tribunal in the famous “water buffalo” case, where a well-meaning student named Eden Jacobowitz addressed a group of undergraduate women who were raucously celebrating their sorority’s anniversary just outside his dorm window as he was studying. He shouted “shut up, you water buffalo!” The women being African-Americans, this was deemed by them, and by student-life administrators, to constitute “racial harassment.”

It turned out, actually, that in the offending student’s first language, Hebrew, the common slang term behema reasonably translates into “water-buffalo” and refers to a rowdy or thoughtless person. Penn’s administrators, unaware of, and uninterested in, Jacobowitz’s cultural background, assumed that the water buffalo was native to Africa (it’s not), and from this they extrapolated their hate speech theory. In the face of derisive worldwide publicity, the campus bureaucrats backed down, but it turned out to be merely a strategic retreat, not a true surrender.

Sanity’s well-publicized victory in the water buffalo case triggered a flood of students seeking assistance from Professor Kors and me. These beleaguered individuals were suffering not only from unfair persecutions, but also were being cheated out of a genuine liberal arts education. The liberal arts are not readily compatible with censorship and mindless ideological persecution. It is impossible to teach, and to learn, in the liberal arts arena under such conditions of hypersensitivity and authoritarianism. Indoctrination was replacing true academic study. From the day students arrive as freshman they are subjected to “sensitivity training” engineered by burgeoning student life bureaucrats who intrude into their most intimate lives and thoughts. I recognized that students, and even dissenting faculty, were at the mercy of a new regime, something of a cross between Kesey’s One Flew Over the Cuckoo’s Nest and Kafka’s The Trial.

Kors and I could not handle the volume, and so FIRE was born out of sheer necessity. I at the time had assumed that surely the ludicrousness of the campus persecutions would result in the phenomenon burning itself out within less than ten years. It was, I told myself, a momentary social panic. FIRE would be a temporary project. The burning of witches in Salem, after all, ended rather abruptly when the Supreme Court of Massachusetts decided that enough was enough and put an end to the trials in 1693. That scourge lasted but one year.

Well, FIRE is in its 17th year, with no end in sight. We are in trench warfare.

The success of The Shadow University triggered my next project.

I wrote a book about the decline of justice in the federal criminal system, which I titled Three Felonies a Day: How the Feds Target the Innocent. As you might intuit by the title, my thesis is, essentially, that the average American arguably commits three federal felonies in a typical day, but does not even realize it. All that is needed is an ambitious federal prosecutor, and a prosecution is born. One has to pray that his case is assigned to a judge who sees through the scam. Most do not. Like campus administrators, too many judges tend to be either cynics or true believers.

And, contrary to the way book projects are traditionally carried out, I went to sell the completed book to a publisher – no book proposal, but, rather, a full manuscript. The publisher of The Shadow University was unwilling to take on the project, perhaps, I wondered, for fear of the U.S. Department of Justice? Other publishers I contacted likewise turned me away.

Enter my dear friend Dorothy Rabinowitz, the Pulitzer-Prize-winning columnist for The Wall Street Journal, who suggested that I send the manuscript to her friend Roger Kimball, the brilliant publisher at Encounter Books (who I see in the audience this evening, and who is on the Board of the Manhattan Institute).

Roger, who had seen some of his own friends get ensnared in the traps for the unwary strewn throughout the ocean of vague federal statutes and regulations, agreed to publish the book. Three Felonies’ has become somewhat of a handbook for the counter-revolution against tyranny. The book’s influence has been such that I recently acceded to Roger’s plea that I write a sequel that would focus on the proposed solutions. I’m nearly half done with the manuscript, and Conviction Machine is due out sometime next year.

In these two theaters of battle in which I find myself, reliable allies are highly valued. This is why the Manhattan Institute is so important: It recognizes the stakes, in terms of liberty and of civilization itself, in both the criminal justice arena and the education arena. I am proud, and buoyed, to have allies like MI. I know that FIRE likewise is grateful to have such a reliable cohort in the fight for restoration of liberty, fairness, and sanity on college campuses.

Together, and with all of the other groups across the political spectrum that see the reality of what is happening and are determined to do something about it, we will prevail.

Harvard to Supply Life’s Meaning To Students

Since the dawn of time, humankind has sought an explanation for our being on this planet, and some have looked for an answer in “liberal arts” education. But now – at Harvard at least – this profound search for meaning has apparently been transferred from the liberal arts department, where definitive answers have been rare, over to the student life bureaucracy, according to The Harvard Crimson.

Crimson staff writer Jamila M. Coleman, wrote that. The Freshman Dean’s office, which for several years has been under the leadership of Dean of Students Thomas Dingman, is focusing on “reflective programming” for Harvard’s presumably benighted and meaning-bereft undergraduates. The most recent step is the creation of a position for a “Fellow for College Programs and Initiatives.” According to the Crimson, this new hire will “attempt to enhance the experience of students by working…on ways to foster personal growth during their four years as undergraduates.”

One of Dean Dingman’s proliferating underlings, Director of College Initiatives and Student Development Katherine W. Steele, explained that the purpose of this new administrator’s work would be to “create experiences where people can dig into these questions of ‘Who am I?’ and ‘What’s my purpose?’”

What does this position entail? An explanation was given to the student paper not by Dean Dingman himself, but rather by one of his countless assistants. Reported the Crimson:

The fellow will attempt to enhance the experience of students by working closely with Katherine W. Steele, the Director of College Initiatives and Student Development at the FDO [Freshman Dean’s Office], on ways to foster personal growth during their four years as undergraduates.

“What does this mean?” you understandably ask. The Crimson continues:

We realized that through doing this kind of programming, you can really create experiences where people can dig into these questions of ‘Who am I?’ and ’What’s my purpose?’” Steele said. “Thinking about those questions now may help you later when you’re deciding what to do after you graduate.”

Of course, guiding students in such a profound pursuit is too large a task for one bureaucrat. So the Freshman Dean’s Office plans to ensure that “[t]he Fellow will work closely with Resident Deans, Faculty Deans, Tutors, and Proctors to provide reflective guidance for students and formulate new approaches to community conversations, a required program during Opening days,” according to Steele. “It’s brand new,” Steele gushed to the Crimson reporter. “This job’s never existed before…we’re going to be a start-up basically, within Harvard.”

And therein lies the value of this initiative: As a start-up, it will doubtless require the hiring of many more administrators to assist the illustrious ranks of Resident Deans, Faculty Deans, Tutors, and Proctors, plus student-life administrative staff. As the Crimson reports, Steele hopes “to run focus groups with recent graduates during the summer, using their reflections to provide direction for new programming.”

The philosophical justification for this new, personnel-heavy and likely expensive initiative is, according to Steele, rooted in a 2006 study by Graduate School of Education Professor Richard J. Light. “Seniors said they learned a lot from chemistry and history and whatnot, but never really learned how to live life,” Steele told the Crimson. Hence the need for this profound new initiative headed by the student life bureaucracy. “The position is a very college focused role and is not necessarily just a response to a need that we’re seeing here at the Freshman Dean’s office,” Steele assured the reporter. And because this lacuna in Harvard’s curriculum “is not isolated to freshman year, this person will focus on personally transformative programming across the four years,” she said.

Of course, such a profound four-year initiative cannot be the sole province of Director Steele and the soon-to-be-hired Fellow for College Programs and Initiatives.  And so the Crimson reported that Dean for Administration and Finance Sheila C. Thimba “wrote that she approves of the new position’s goal of fostering personal growth among students.” “I’m glad we can support this nascent programming in personal transformation,” Dean Thimba said.

This new initiative is not altogether unexpected, but rather is the latest piece of a larger and longer-standing effort to direct students’ personal growth.

Reports the Crimson:

“Administrators have in recent years attempted to bolster College programming focused on student reflection. In 2015, Dean of the College Rakesh Khurana pushed for additional reflection seminars and retreats during winter session.”

And, of course, when the powerful Dean of the College pushes, the rest of the ample bureaucracy responds with creative new initiatives, and, of course, new hires.

All of this makes for rather interesting reading. But it does appear that certain fundamental questions are not being asked, much less answered: Is it not the role of the faculty of a liberal arts college to spend four years helping students think about questions such as “Who am I?” and “What’s my purpose?” And is it not the province of the students to answer these highly personal questions themselves, without micromanagement by student-life administrators? With these fundamental questions asked and presumably answered by the bureaucrats assembled by the Freshman Dean’s office, what role will remain for the learned Harvard faculty, or indeed, for the student meaning-seekers themselves?

It’s a troubling – if not entirely surprising – fact that administrators now vastly outnumber faculty members in our institutions of higher education. According to one analysis, the ratio of full-time administrators to tenured or tenure-track professors in 2008 was roughly 2:1. I’d bet that in the past eight years since this study was done, the ratio has tilted even more dramatically in favor of administrators. What we don’t know is why this has come to be. Perhaps an inquiry into administrative bloat should be the next focus of the Harvard Freshman Dean’s office. This weighty task will, of course, doubtless require several new administrative hires.

A version of this article ran on WGBF News, Boston and is reprinted with permission.

Faculty Ousted at Harvard – From Power, That Is

The ills besetting higher education in recent years – ballooning tuitions, kangaroo disciplinary tribunals, speech codes and other violations of academic freedom, expanding bureaucracies, invasions of student and faculty privacy, lowered academic standards, and others – are on virtuallyeveryone’s minds. However, these problems are not mutually exclusiveand severable; rather, theyare manifestations of a larger downward spiral at the majority of liberal arts colleges and universities.

Yet the root cause of these problems in the academy has received scant notice. Driving this institutional decline isthe massive transfer of power from teachers to administrators, which is a phenomenon I have observed over the course of my career as a lawyer who represents students and teachers. Unless the trend is recognized and reversed, higher education – one of the nation’smost successful economic and cultural machines – will inevitably decline.

No Faculty Consultation

In the latest development in the devolution of power to academic administrators, the Harvard Arts and Sciences faculty protested, by unanimous vote at a November 4th faculty meeting, changes made to the faculty’s health benefits without, claim the protesters, adequate facultyconsultation. This condemnation of the administration came just weeks after the October 15th publication of a letter on the Globe’s opinion page issued by 28members of the Harvard Law faculty protesting the university’s new sexual assault policy. The new regime largely removes the investigation (and definition) of sexual harassment and assault from the jurisdiction of each school’s faculty-run administrative board to a newly-created creature of the central administration known as the Office for Sexual and Gender-Based Dispute Resolution.

The law professors who protestednoted that the Harvard administration was acting “under pressure imposed by the federal government, which has threatened to withhold funds for universities not complying with its idea of appropriate sexual harassment policy.” The fact that such a massive change in governing policy putting such limits on faculty powers in the face of Harvard’s 378-year history of faculty governance could be imposed on Harvard Law School and the entire university without faculty consultation startled signatories from all ends of the political spectrum.This move was particularly mind-boggling considering that the university’sadministration hasone of the nation’s leading law faculties at its fingertips. (If Harvard really wanted to fight the Washington bureaucrats, it surely has the brains and brawn to do so.)

A Break from Tradition

The law professors’ criticism of this administrative overreach barely scratches the surface of a central problem that has led colleges and universities throughout the country to inflict massive changes in college and university culture. In their opening paragraphs, the professors write, “We also find the process by which this policy was decided and imposed on all parts of the university inconsistent with the finest traditions of Harvard University, of faculty governance, and of academic freedom.”Often under pressure of federal bureaucrats, but invariably via the leadership of central bureaucracies, schools have slowly taken power away from teachers. Harvard’s practice of consultation with its faculty is better than at many universities, but it’s a shadow of what it used to be.

This gradual takeover, nationally, of higher education by bureaucrats at the expense of faculty power is evident in several ways and is much to the detriment of our students’ educational experience. Although studies show that the ideal operating ratio is about three tenure-track faculty members for every one administrator, by 2008, administrators actually outnumbered faculty two to one. This skewed structure is only worsening, as even recession has not spurred the cuts necessary to keep tuition costs affordable. Universities now have campus police forces that could easily pass for any big city police force, and indeed some campus police departments have bulked up by accepting retired military equipment. (See Radley Balko’s Rise of the Warrior Cop: The Militarization of America’s Police Forces for more on this phenomenon.)A recent scandal at the University of Massachusetts grew out of the campus police actually turning an opiate-addicted student into an informant, rather than directing him to treatment. (The student died of an overdose.)

The Business Model

Universities, meanwhile, have adopted growth goals and corporate interestspreviously reserved for profit-making businesses. Yale has opened a branch in authoritarian Singapore, where academic freedom problems abound, but where students can afford to pay. Previously, American colleges established foreign outposts in centers of learning, such as Paris and Athens. But now the trend, as I’ve written about before, is to follow the money. Just try to sell a t-shirt with the Harvard logo; the university’s intellectual property lawyers will almost certainly go after you for a cut of the action.

Another symptom of the cash-crazed culture of academia is evident in something as ostensibly trivial as the names of campus buildings.Academic buildings used to benamed for great figures in the world of learning; on occasion, a building would be named after a major donor. But just within the past few years Harvard has re-named its Holyoke Center, formerly honoringEdward Holyoke – who served as Harvard’s president for 32 years (1689-1769) –in honor of donors whose major claim to fame has been their generosity to the university. Even more recently the university renamed an entire school – its School of Public Health – after the father of a major donor.

The Harvard faculty, and university faculties everywhere, should not be too surprised that the life of the academy nationwide is being taken over by bureaucrats, and that the values and practices of the marketplace now reign supreme. They, and we, allowed it to happen by failing to see the early warning signs. Whether it will be possible to restore our colleges as places of learning, rather than bureaucracies dedicated to establishing fiefdoms of money and power, is anyone’s guess. But at Harvardand elsewhere, one can only hope that faculties will follow the lead of the 28 law school professors and become exercised over something other than the incursions into faculty medical benefits.

Ole Miss Seeks to Put First Amendment in a Noose

Meredith.jpgQuestion: When is an obnoxious expression of a point-of-view a crime in our supposedly free society? Answer: When college administrators and federal law enforcement officials find it in their career interests to appeal to political correctness and play holier-than-thou, all at the expense of liberty, as the latest controversy at the University of Mississippi demonstrates.

On February 16th, three Ole Miss fraternity brothers allegedly placed a noose and a Confederate flag on the campus statue of James Meredith. Meredith, a hero in the civil rights movement, enrolled at then-segregated Ole Miss in October 1962 with the aid of a court de-segregation order and 500 U.S. marshalls whose job it was to enforce that order. (I have to admit to a yearning for the “good old days” when the Department of Justice actually protected rather than eroded constitutional rights on college campuses – but that’s a story for another column.)

Continue reading Ole Miss Seeks to Put First Amendment in a Noose

The Slow Death of Free Speech at Harvard

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A speech to the 55th reunion of the Harvard Law School class of 1958, October 26, 2013.

I graduated from Harvard Law School in 1967. Very early in my career, I represented many students in Administrative Board cases growing out of their protests against the Vietnam War. I represented (with Alan Dershowitz) one group of students accused by the Administrative Board of harassment for closely following the Harvard College Dean, Ernest May, 24 hours a day, chanting “murderer, murderer, murderer.” Wherever the dean walked in Cambridge, he was followed.  Dean May was consulting at the time for the Department of Defense. This is why the students followed him and chanted.

The College’s Ad Board acquitted the students on academic freedom/free speech grounds, simply advising the students to keep a respectful distance from Dean May when they followed him. This would never happen today. The definition of “harassment” has very much swallowed up the concept of free speech and academic freedom.

Continue reading The Slow Death of Free Speech at Harvard

The Feds Mandate Abolition of Free Speech on Campus

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By Harvey Silverglate and Juliana DeVries

In a breathtakingly bold move, the civil rights offices of both the Department of Education and the Department of Justice have mandated the effective abolition of free speech on college campuses, as well as the almost certain conviction of large numbers of students, many of whom will be innocent, of “harassment.” Neither justice nor education will be well served.

The ED/DOJ’s disturbing and unconstitutional May 9th letter, mandating changes in sexual assault and harassment procedures and standards, arose out of a joint ED/DOJ investigation and evaluation at the University of Montana, Missoula. The ED and DOJ addressed their letter to the university president, but more broadly described it as “a blueprint for colleges and universities throughout the country to protect students from sexual harassment and assault.” In other words, any college or university receiving federal funding (which includes nearly all of them) risks losing that funding, if it does not comply with the standards laid out in the letter. 

Continue reading The Feds Mandate Abolition of Free Speech on Campus

Harvard Botches a ‘Cheating’ Scandal

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By
Harvey Silverglate and Zachary Bloom

At first blush, the ongoing cheating scandal at Harvard
College appears to raise serious questions about academic integrity at that
fabled institution. If the allegations that 125 students inappropriately shared
notes and answers for a take-home exam in violation of the exam’s rules prove
true, the result will be a massive blot on Harvard’s near-perfectly manicured
public  image–especially now that top 
athletes have been implicated.

But let’s remember that because of the course’s confusing rules and guidelines concerning collaboration, no one, likely not even the
students themselves, can say right now whether their conduct was illicit. Worse
yet, we may
never know the truth, much less have a just verdict on the
propriety of the students’ actions, now that the case is securely in the hands
of the spooks haunting Harvard’s notorious Administrative Board.

Continue reading Harvard Botches a ‘Cheating’ Scandal

Harvard, Where Civility Trumps Free Speech

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Harvard’s Dean of Freshmen Thomas Dingman has managed to circumvent the brouhaha he created last year with his “kindness pledge.” To recap: In the fall of 2011 Dean Dingman drew the wrath of former Dean of Harvard College Harry Lewis, as well as the mockery and criticism of the Foundation for Individual Rights in Education(FIRE) and the media, when he pressured incoming students to sign a pledge to “act with integrity, respect, and industry, and…civility” and to believe that “the exercise of kindness holds a place on par with intellectual attainment.” Dingman posted the pledge with signatures affixed near dormitory entrances where all could see who had surrendered to this strange attack on freedom of conscience and who had not. Dean Dingman eventually caved under the pressure and agreed to take down the signature lists, although not the text of the pledge itself.

We now know that Dean Dingman’s retreat was merely a tactical one. He was not persuaded by his critics’ arguments against pressuring college students to publicly display their personal and ideological opinions, especially when the pressure was to announce belief in the Dean’s own personal views. Dingman must be unfamiliar with the sordid centuries-long history of authoritarian figures requiring the less powerful to mouth officially-approved views. And so this year, without any public pre-announcement (which doomed last year’s thought-reform efforts because it gave opponents time to mount an attack),Dean Dingman managed to slip a stealth re-education program into Harvard’s freshman orientation week. It was essentially the same stuff recycled in a format where he did not have to get the students to actually sign, and so where there was no clear forum or trigger for dissent.

Continue reading Harvard, Where Civility Trumps Free Speech

After Awful Tragedies,
The Campus Bureaucracy Expands

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The Boston Herald is a scrappy, politically conservative
tabloid that normally rants and rails against excessive regulations and good-for-nothing
government bureaucrats. Yet in an editorial on the Penn State child
molestations, titled “Keeping campuses safe,” the Herald called for a heavily expanded
bureaucratic response. It excoriated “the football program staff” of Penn State
who, quoting assertions in the Freeh Report, “had not been
trained in their Clery Act responsibilities and most had never heard of the
Clery Act,” a 1990 federal statute requiring colleges and universities to
report crimes that happen on or near their campuses. It is named for Jeanne
Clery, a Lehigh University freshman raped and murdered in her dorm in 1986.

Statutes named after victims of rare but spectacularly awful crimes are
especially likely to be overkill laws that cause unnecessary added bureaucracy and
dismal unforeseen consequences. Yet here was the Herald, which knows better, on the side of more regulation
when it came to universities. The army of advocates for increased
administration in higher education’s already bloated bureaucracies has landed
on the Penn State scandal with considerable gusto. Self-interest motivates many
of those who argue for more regulations and increased numbers of administrators
at Penn State, including the increased use of professionals who provide
“training” for campus student life administrators. 

Continue reading After Awful Tragedies,
The Campus Bureaucracy Expands

Harvard’s PR Machine and the Cherokees

Elizabeth Warren.jpgSeemingly lily-white Elizabeth Warren’s supposed claim of Cherokee heritage may make for good campaign fodder–incumbent Senator Scott Brown has gone so far as to demand that Warren apologize for allowing Harvard to claim her as a minority–but the real lesson in this latest of partisan battles has more to do with university rather than electoral politics.

For those who have been living in a bubble, let’s rehash: On April 27th, the Boston Herald reported that Elizabeth Warren “was once touted by embattled Harvard Law School officials…as proof of their faculty’s diversity” in 1996; indeed, according to the Herald, Warren was considered the only minority woman on the Law School faculty at the time (a statistic of great interest, it seems, to those who count such things). Following the report, the Warren campaign has been on the defensive as opponent Brown, along with many members of the media, have been questioning (or simply making fun of) Warren’s seemingly cynical careerist use of her Native American heritage. Over the next few weeks, we will doubtless continue to hear details about Warren’s family, and about whether or not she used her lineage in a suspect way.

Continue reading Harvard’s PR Machine and the Cherokees

Misconduct Hearings on Campus Are Rotten and Have to Change

This is the text of a speech given March 28, 2012 at a Manhattan Institute luncheon in New York City.

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silverglate.jpgI began representing students in 1969. A group of Harvard students took over University Hall in an anti-Vietnam War protest. There was a lot of violence, President Pusey called in the police, and 220 students were charged with trespass on the property of the President and Fellows of Harvard College. My law partners and I took the case, and they tried them in groups of 20 students at a time. Much to the consternation of the President and Fellows, and the district attorney of Middlesex County, the jury said not guilty to the first group. So they gave up the rest of the cases. They figured if the jury wouldn’t convict the first 20, they’re not going to convict the rest.

And that got me interested in this whole area. And two years later,
in 1971, I had my first student disciplinary case in front of the now
feared Harvard Administrative Board. That’s the disciplinary body. And
it was a rather interesting case, and I want you to see where I’m
coming from, what I experienced at the beginning of my career. And then
I’ll tell you a little bit about the last 20 years.

Continue reading Misconduct Hearings on Campus Are Rotten and Have to Change

Students’ Sexuality is Their Own Business

According to various reports, UCLA may ask incoming students about their sexual orientation. Such a development would make it the second school in the nation to do so–Elmhurst College in Illinois became the first last fall. The disclosure would be voluntary, and would have no bearing on admissions. As Matt Comer, a spokesperson for the LGBT organization Campus Pride told Fox News, “It’s much like asking race or gender.”

Continue reading Students’ Sexuality is Their Own Business

The Amazing, Shrinking Academic Year

When I read this article in today’s Harvard Crimson, asking for a shorter school year, I couldn’t figure out if it was a parody. At first I laughed, but then it occurred to me that the Crimson editorialists are likely serious.

I would love to see a comparison done of the length of the academic
year for each decade starting in the 1960s and running to the present.
If memory serves, the academic year took a major reduction during the
“oil crisis” during the woeful administration of President Jimmy Carter;
the winter break was extended supposedly in order to conserve fuel
during the coldest months of the year. Then oil came back into plentiful
supply, but the school year has continued to shrink. And, of course,
the professoriate has likewise enjoyed a much shorter teaching year, as
students have come to enjoy a much shorter learning year. And we are all
familiar with how difficult it is to find an administrator on campus
the day or two before one of these incessant “breaks.”

Continue reading The Amazing, Shrinking Academic Year

Will Harvard Stop Trying to Impose Orthodoxies?

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Although our beleaguered universities continue their seemingly inexorable march from being institutions of higher education to resembling, more and more, political and social re-education camps for the young, every now and then the students demonstrate that they remain well ahead of campus administrations and faculties when it comes to appreciating the true role of our colleges and universities:  It appears that our universities’ efforts at attitudinal indoctrination have not been wholly successful.

We see the latest example at Harvard in an editorial in the college newspaper The Harvard Crimson. Headlined “A University, Not A Think Tank: Harvard should not issue a formal position on inequality” (The Harvard Crimson, December 14, 2011), the undergraduate journalists take their professors to task for continuing on the perilous journey of politicizing the institution by seeking to have the school, in the editorial’s words, “use its position to make a statement against social inequalities.”

The statement, triggered by the ubiquitous “Occupy” movement that recently swept the nation as well as many college campuses, was proposed at the December faculty meeting by Professor Susan Suleiman, acting chair of the Department of Romance Language and Literatures. While the student editorialists agreed with Professor Suleiman “that social inequality is an important issue to address in today’s society,” they warned against turning a university into a “think tank” by officially espousing political and social positions.

The Crimson editorial argues that Harvard’s primary responsibility is “to promote free discourse,” and that the university’s taking a formal and official position on “contemporary political issues…such as inequality” would inevitably move it in the direction of, for example, “endors[ing] a presidential candidate, or impos[ing] a political litmus test for faculty.”

In fact, this would hardly be the first time that the student journalists had to lecture their teachers on the contours of intellectual freedom and of the dangers in crossing the line from education to indoctrination. Whether defending a student’s right to parody seemingly incompetent administrators at the Business School, or castigating the attempted imposition of a racial speech code at the law school, the student editors of the Crimson have for the most part eloquently defended intellectual freedom against those who would constrain it.

But the push against open discourse and intellectual vibrancy at the university has been strong over the last two decades, as university administrators and faculty have made a veritable tradition of betraying these seemingly sacrosanct principles. In 2006 the faculty managed to drive out the university president, Lawrence Summers, for suggesting the existence of scientific evidence of women scientists’ gender-based overall predisposition not to perform at the highest levels, in contrast to their male counterparts. In 2009, the Dean of the Law School publicly embarrassed and castigated a student for a controversial private e-mail expressing the student’s interest in seeing more scientific research results on the hot-button issue of race and intelligence. And at the beginning of the last semester, the Harvard College Dean of Freshmen sought to impose on all new arrivals a “Freshman Pledge.” As explained in this space this past September, it was only because of considerable push-back that the dean retreated from his insistence that the oath be posted at every freshman dorm entryway with a signature line for every student, so that everyone would see which students were, and which were not, prepared to publicly declare their fealty to the notion that “the exercise of kindness holds a place on a par with intellectual attainment,” thereby “upholding the values of the College” that include “inclusiveness and civility.” (For a longer discussion of Harvard’s new tradition of betraying free speech, see this piece by Daniel R. Schwartz.)

And so even though the Dean of Freshmen failed (for the current year only – he vowed to return to the issue at the start of fall semester later this year) to stampede first-year students into pledging to kindness and inclusiveness as essential and mandated values rather than mere personal preferences, the acting chair of a major department tried to pledge the entire institution into solidarity with a social and political movement.

And unfortunately, we cannot be overly confident that the Crimson will maintain its longstanding policy as a bulwark against administrative and faculty overreach. In the last year alone, Harvard’s highly regarded student newspaper (“The University Daily Since 1873,” blares the masthead proudly) has failed twice to defend freedom of conscience at Harvard. In response to the pledge controversy, rather than support former Dean Harry Lewis’s unmitigated position against the pledge, the Crimson editorial board called for the imposition of amoral code. The code would, said the editors, represent “an explicit affirmation of the moral value set that should guide the Harvard community;” such “codification of morality” being necessary to “truly bring integrity, respect, compassion, and kindness on par with success.”

And two days earlier, the student editors reminded the faculty of the proper academic and intellectual mission of the liberal arts university, the same editorial page supported the December 6th vote of the Harvard College faculty to exclude from the Harvard Summer School catalogue two economics courses taught by Indian economist Subramanian Swamy. The reasons for Swamy’s effective expulsion from the faculty was his authorship of an editorial–for a newspaper in his native India–urging the Indian government to take drastic steps in response to Muslim extremism. This action by the faculty was taken at the behest of Comparative Religion Professor Diana L. Eck, who strained laughably to characterize Swamy’s newspaper column as something more sinister and dangerous than mere speech. This time the Crimson editorialists bit: “Swamy’s op-ed clearly constitutes hate speech, by even the most lenient definition,” they wrote. “As a matter of principle, there is no place for hate speech in the Harvard community.” While a clear misreading of the article–Swamy’s piece may seem radical, but calling it hate-speech is quite a stretch, and calling it incitement absurd–what neither Professor Eck and her faculty colleagues, nor the student editorialists understood, of course, was that in the society outside of the ivy gates, “hate speech” is accorded vigorous constitutional protection.

As the Crimson editorial’s warning to the university not to go overboard in adopting formal institutional positions on such political issues and economic inequality demonstrates, the students are still ahead of their teachers when it comes to preserving the academy’s unique devotion to freedom of thought and speech, and to intellectual pluralism. However, as the Swamy and pledge editorials equally show, even student editors are not completely immune from the increasingly dangerous politicization of the academy that threatens academic freedom and, indeed, the whole concept of a liberal arts education. The danger, of course, is that within another generation, the constant pressure from faculty and administration to water down the liberal arts university’s traditional mission will have converted the students into unquestioning followers of their politicized elders.

Harvard Pressures Freshmen to Sign a Moral Pledge

Taking a pledge.jpgHarvard College’s Class of 2015 found something unprecedented awaiting their arrival on campus: an ideological pledge. It was framed as a request for allegiance to certain social and political principles. No such request had been made of Harvard students since the college’s founding by Puritans in 1636.

First-years are being pressured to sign a “Freshman Pledge” committing them to create a campus “where the exercise of kindness holds a place on a par with intellectual attainment” — all in the name of “upholding the values of the College” including “inclusiveness and civility.”

The request – originating from the Dean of Freshmen, in consultation with the secretary of Harvard’s feared disciplinary tribunal, its Administrative Board, and communicated via dormitory tutors who are the students’ main liaison with the administration – asked that students commencing their four-year journey of intellectual and spiritual awakening take a position on social and political issues that are much debated in our contentious times. “Inclusiveness” and “civility” have become, for better or worse, buzz words among those who argue over the extent to which harsh rhetoric should be avoided in the name of providing students protection from the hurt feelings that often result from vigorous arguments.

Continue reading Harvard Pressures Freshmen to Sign a Moral Pledge

What Yale’s President Should Have Said about the Frat Boys

By Harvey Silverglate and Kyle Smeallie

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The Department of Education is currently investigating Yale University for allegedly maintaining a sexually hostile environment. No one can deny that the New Haven Ivy is in a difficult position. To wit, Yale enacted changes last month to lower the standard of proof in sexual assault cases, and last week, College Dean Mary Miller announced that a fraternity would be banned for five years, a result of an October 2010 incident in which pledges shouted sexually-graphic chants. Yale, by all appearances, is capitulating to federal pressure. It didn’t have to. Here’s how Yale President Richard Levin could have stood tall, on behalf of educators and liberal arts institutions everywhere, in the face of Washington’s unwelcome–and ultimately destructive intrusion.

Dear Assistant Secretary for Civil Rights Russlynn Ali:

Allow me to introduce myself. I am Richard Levin, President of Yale University. I’ve been at the helm of this great institution since 1993, making me currently the longest-tenured president in the Ivy League. As a long-time observer of higher education, and one who has praised its historical autonomy from the public sector, I feel an obligation to express my concern about recent developments from your office.

I’m writing today in response to a Title IX civil rights complaint for gender discrimination that your office has filed against my university, as well as a “Dear Colleague” letter sent by you last month to nearly every college and university,both of which concern the adjudication of sexual harassment allegations in higher education.

Continue reading What Yale’s President Should Have Said about the Frat Boys

What Characterizes the Modern Totalitarian, Corporatized University?

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In Savannah, Georgia, an ambitious experiment in higher education is under way. Ralston College aims to offer a back-to-basics liberal arts experience , stripped of the amenities and assumptions of the modern university. Though just now getting off the ground–it has yet to accept student applications–its stated mission is clear. Students will experience rigorous coursework year-round and focus on “reading books, thinking about them, and talking about them,” according to the college’s brochure.

Perhaps more noteworthy is what Ralston College intends not to have: armies of administrators micromanaging student life, cloistered academic departments unwelcoming to interdisciplinary studies, and coddled students whose sentiments and comforts, as supposed “customers,” are paramount.

It is too early to tell how this experiment will play out. But its mere existence is rather remarkable. In a country with some 4,400 degree-granting institutions of higher education, a market niche is apparently opening for the classic pursuit of the liberal arts.

Continue reading What Characterizes the Modern Totalitarian, Corporatized University?

“You will cheer and smile! And you will like it!”

Cheerleaders-from-the-back-nfl-cheerleaders-802861_580_504.jpgThe first remarkable aspect of the case intriguingly captioned John Doe, Father of Minor Daughter H.S. v. Silsbee Independent School District, are the facts: Administrators at a public high school in Texas threw a female student off of the cheerleading squad because she refused to cheer for one particular member of the basketball team—a fellow student who, she claimed, had sexually assaulted her at a party. Cheer when the rest cheered, she was told, or else be kicked off the cheerleading squad for the rest of the year. She refused, and was dismissed from the squad, court records show.
But reading closely the legal briefs and court opinions produces a second, equally remarkable fact: Neither the lawyer for the dismissed cheerleader, nor the three judges of the federal Fifth Circuit Court of Appeals (sitting in New Orleans), bothered to cite, much less follow, arguably the most famous and fundamental Supreme Court opinion ever written interpreting the scope of the First Amendment in protecting public school students: West Virginia Board of Education v. Barnette. It is an opinion that Professor Alan Charles Kors and I discussed in considerable detail in our 1998 book, The Shadow University: The Betrayal of Liberty on America’s Campuses. I’ll return to this momentous opinion below.
How can it be that everyone (including three appeals court judges on a level just one step below the Supreme Court) appears to have missed the one high court opinion that would quickly and neatly resolve the case in the exiled cheerleader’s favor? The answer, it seems to me, lies in the fact that, when it comes to litigation concerning the civil liberties of public school students, nearly everyone reflexively thinks in terms of the politically correct concepts—and shibboleths—of the day. Because our thinking about issues of free speech and independent thought in the academic world are so off-kilter, it becomes more difficult to see tyranny over public school students as precisely what it is—tyranny—rather than simply as par-for-the-course administrative control over the lives, words, and even thoughts and attitudes of students.

Continue reading “You will cheer and smile! And you will like it!”

Eliminating Free Thoughts in the Name of False Safety

What does it mean to be safe on campus? The word is so often invoked—creating “safe zones” or maintaining a “safe environment”—that it has arguably become meaningless.
Perhaps more accurately, it has taken on a second meaning, specific to the university. Whereas the real-world definition refers essentially to one’s physical well-being, in the campus context “safety” has become synonymous with feeling comfortable, or not hearing challenging words or ideas—threats, simply put, to one’s emotional state and level of comfort.
This disparity transcends linguistics. It speaks to how the modern university prepares—or fails to prepare—students for the real world. There’s nothing wrong, per se, with administrators caring for student comfort in all of its forms. But when that encroaches on basic campus liberties as well as to the academy’s core educational mission, even those sympathetic to a given group’s cause must take a step back. Events over the past two weeks at the University of Rhode Island provide a clear example.

Continue reading Eliminating Free Thoughts in the Name of False Safety

How Corrupted Language Moved from Campus to the Real World

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In some quarters I’m viewed as a lawyer with a professional identity problem: I’ve spent half of my time representing students and professors struggling with administrators over issues like free speech, academic freedom, due process and fair disciplinary procedures. The other half I’ve spent representing individuals (and on occasion organizations and companies) in the criminal justice system.

These two seemingly disparate halves of my professional life are, in fact, quite closely related: The respective cultures of the college campus and of the federal government have each thrived on the notion that language is meant not to express one’s true thoughts, intentions and expectations, but, instead, to cover them up. As a result, the tyrannies that I began to encounter in the mid-1980s in both academia and the federal criminal courts shared this major characteristic: It was impossible to know when one was transgressing the rules, because the rules were suddenly being expressed in language that no one could understand.

In his 1946 linguistic critique, Politics and the English Language, George Orwell wrote that one must “let meaning choose the word, not the other way around.” By largely ignoring this truism, administrators and legislators who craft imprecise regulations have given their particular enforcement arms—campus disciplinary staff and federal government prosecutors—enormous and grotesquely unfair power.

Continue reading How Corrupted Language Moved from Campus to the Real World

The Cambridge Empire Strikes Back

By Harvey Silverglate With Kyle Smeallie
Harvard University may be losing money like a hard-luck high-roller, but the Vegas tagline (what happens in Vegas stays in Vegas) certainly does not apply: what happens at Harvard reaches well beyond the Cambridge confines. For better or for worse, many schools follow in Harvard’s footsteps. What better place, then, to effect change in American higher education than a place where other schools—at least until the recent economic meltdown—have been green with Crimson envy?
Such was the premise behind my insurgent campaign for a seat on the Board of Overseers, one of Harvard’s two governing boards. Dismayed by the lack of principled oversight (a key reason, I suspect, for Harvard’s recent financial woes) and the general illiberal culture of his alma mater, I spent months trying to convince alumni to elect me to the board. In early June, however, Harvard officials informed me that my bid for a six-year term on the 30-member board came up a bit short.
In defeat, I learned the very same lesson that Harvard Law School alum Barack H. Obama (Law School class of 1991) learned when he ran as a petition candidate in the 1991 Overseers election: Input from outsiders—those unwilling to place collegiality over candor—is unwanted.

Continue reading The Cambridge Empire Strikes Back

Be Fair, Harvard

In theory, e-mail should make it easier to organize for social and political change. But, as recent events in my campaign as a petition candidate for Harvard’s Board of Overseers have shown, new means of communication can be used to relegate would-be reformers of the academy to dead-ends, and to keep the outsiders outside. If I might make a rough analogy to the familiar Star Wars trilogy: My initial undertaking of my petition candidacy, along with my fellow petition candidate Robert Freedman, has been followed by the second phase of the trilogy, namely The Empire Strikes Back. Freedman and I are now working to get to the third installment, Return of the Jedi. But I’m getting a bit ahead of the story.
I should not feel like an outsider – much less a barbarian knocking on Harvard’s gates, seeking a place at the table – but I can’t help feeling that I’m being treated like one. After all, I came to Cambridge in 1964, attended my law school classes with due attention (especially given the fact that I had to work full-time to support myself, my mother and younger brother after the sudden death of my father while I was a senior at Princeton), received my LL.B. in 1967, and remained in Cambridge to marry and live and to practice law in Boston. During that time, I became a legal affiliate-in-law at one of Harvard College’s undergraduate houses, where I still give unpaid “pre-law table” discussions once each semester. I’ve judged moot court arguments at Harvard Law School. I taught a course at the law school during a sabbatical-from-practice that I took in the mid-1980s. I’ve lectured to many an undergraduate class. And I continue to advise Harvard students, and even an occasional faculty member, when they get into trouble (with Harvard, as well as with the outside “real world”). Now, I’m running as a petition candidate for Harvard’s Board of Overseers, the university’s second most powerful governing body.
So why do I feel like an outsider?

Continue reading Be Fair, Harvard

Brandeis: Still Abusing A Professor

By William Creeley & Harvey Silverglate
Reaction to Brandeis University’s plan to close the Rose Art Museum and sell its esteemed collection was swift—and scathing. Within the Brandeis community, President Jehuda Reinharz’s proposed fire sale provoked howls of betrayal from students, faculty, alumni, and donors. In the art world and news media, the move was met with blistering condemnation. Even the Massachusetts attorney general’s office launched an investigation.
The press reported that Michael Rush, the Rose’s director, expressed “shame and deep regret” at the university’s plan. (Adding insult to injury, Rush was notified of Reinharz’s plan just an hour before the press release was issued.) In Rush’s assessment, by shuttering the Rose, Brandeis would place its “intellectual capital and very credibility as an institution of higher learning on the auction block.” That the museum director was not involved in such a momentous decision is perhaps as revealing and important as the decision itself.
A strict adherent to the corporate model of university governance, Reinharz responded to the furor with an empty apology, expertly crafted by a public relations firm to sound palatable while leaving the decision largely intact. But the backlash against Reinharz’s announcement stems not only from its wrong-headedness, but also from the arrogance and lack of process with which the decision was made.

Continue reading Brandeis: Still Abusing A Professor

Let’s Cut The Administrative Fat

After years of fat, our colleges and universities are now facing decisions imposed by the coming years of lean. Will the academy pull back from the spending binge of recent decades by cutting away administrative fat, or by chipping away at academic bone? Will it be administrations or faculties that get downsized? The answer will speak volumes as to whether today’s universities are more interested in educating their students, or in reforming their thinking and their conduct.
Whether the enormous growth of the administrative infrastructure has been due to the sudden influx of extraordinarily generous contributions buttressed by ahistorically large portfolio investment returns, or instead to the need to hire foot-soldiers to implement the politically correct ideological programs necessary to create the modern in loco parentis university, is anyone’s “chicken-before-the-egg” guess. But the bottom line is that since the mid-1980’s, burgeoning academic and student life bureaucracies – and the “needed” money to pay for them – changed the face, and much of the mission, of the modern (or should one say post-modern?) university.
This observer, relying more on observation and hunch than outright cynicism, is willing to bet that the teaching side of the academy will suffer more than the in loco parentis administrative side. Assistant vice-deans of student life specializing in sensitivity training will likely outlast the professor of European history or the instructor in Chinese, Arabic, or other critical languages.

Continue reading Let’s Cut The Administrative Fat